Bloggings On PERM Labor Certification

On December 16, we will have the third and last teleconference in our series, "PERM for Experts."

As in the first two conferences, we have an all-star cast, and I guarantee a lively and provocative discussion. For PERM lovers, it doesn't get any better than this!

First, we'll take a fresh look at restrictive requirements. Where are we nearly five years after PERM was introduced? What issues are active? Which are not?

Restrictive requirements is a catch-all phrase that refers to a set of regulatory requirements, including the following: Actual Minimum Requirements, Special Requirements, Foreign Languages, Combination of Occupations, Alternative Requirements.

We'll be updating all these issues and see where we stand with Kellogg. At least one employer recently argued against the Kellogg Magic Language. He said it was "silly" and refused to put it in Box H-14 (or anywhere else) and BALCA agreed. This just goes to prove that when you think you can't, sometimes you can.

Our long-term friend and everyone's favorite raconteur, Nathan Waxman, will step up to the plate to field the panel's questions and challenges on restrictive requirements. Nathan will be joined in the conference by Careen Shannon and Michael Piston, both very heavy hitters in their fields. Careen is a writer and editor par excellence, and Michael is a legend in litigation.

The Anti-Fraud Rule in all its ugliness will be an important topic during the teleconference. Is the rule prohibiting attorney fees unconstitutionally vague? Overreaching? Is it legal? If not, why not?

And what about audits? What is the scope of a PERM audit? What evidence can he provided during an audit? Can new documents be brought into the record for the first time in response to an audit?

Final Determinations are an important exercise in interpretation. There are often important deficiencies and defects in Final Determinations that have to be identified. Is the FD stated in conclusory language? Who has the burden of proof? How much deference may be given to an agency's unfounded findings? What kind of evidence is "substantial?"

What if you get a denial? What is the interplay and dynamics of Motions to Reconsider and Requests for Appeal ? What advantages are there to request reconsider instead of an appeal? And what are some of the major pitfalls in drafting reconsiderations and appeals?

We'll be covering a complete update of BALCA decisions. There are interesting new developments, important for all practitioners. Question to be answered include, "Whatever happened to the Zero Tolerance Policy? " "Is Harmless Error alive or dead?" "Were the founding fathers correct when they said that no remands are needed or permitted under PERM?"

Finally we'll talk about federal court litigation. According to one well known member of the panel, it's easier than you think!

About The Author

Joel Stewart works exclusively in the area of immigration law. Joel Stewart is the editor and author of THE PERM BOOK. He is Past President of the South Florida Chapter of the American Immigration Lawyers Association (AILA) and is a nationally recognized authority on employment-based immigration matters and a popular speaker at immigration seminars for national and local bar associations throughout the United States. Mr. Stewart has been writing the BALCA Case Summaries for AILA and Immigration Law Today since 1987 and authors official AILA articles and publications such as the Visa Processing Guide for Procedures at U.S. Consulates and Embassies in Brazil and Portugal. Mr. Stewart writes weekly newspaper columns for the Brazilian Times and the Brazilian Paper and presents a weekly radio program in Portuguese on Radio Brazil. He is a partner at the firm of Fowler-White-Burnett in Miami, Florida.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.